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Petitioner: MUHAMMAD NAZIR KHAN VS Respondent: DR. MUBASHAR HASAN AND Ano1ier
Court Name: Lahore High Court Judge(s): Zakiuddin Pal Title: MUHAMMAD NAZIR KHAN vs DR. MUBASHAR HASAN AND Ano1ier Case No.: Writ Petition No. 39-S of 1972 P. O. No. 1 of 1972 P. O. No. 1 of 1972 Date of Judgment:1973-07-30 Reported As: PLD 1974 Lahore 49 Result: Petition accepted
JUDGMENT
JUDGMENT The petitioner was employed in BECO Industries Ltd., Lahore, in 1953. According to him, he has been working as Security Officer in the said concern for the last about 14 years till he was allegedly removed by respondent No. 1 against law. 2. President's Order 1 of 1972 (Economic Reforms Order, 1972), came into force on 3-1-1972, whereby the administration of the big industries, categories of which are given in the Schedule thereof was taken over by the Government. It is admitted that the administration of the affairs of the BECO Industries Ltd., was also taken over by respondent No. 2, in compli--ance with the provisions of the said Order of the President. According to Article 3 of the Order it shall have effect notwithstanding anything contained in the Provisional Constitution Order or any other law for the time being in force or in any agreement, contract, memorandum or articles. The Central Government can appoint a Managing Director under Article 4 of the said order, if it considers necessary in the public interest for the purposes of managing the affairs of such an establishment. After the appointment of a Managing Director the administration of the affairs of such establishment taken over under the said order shall vest in him and any person or authority exercising or having the right to exercise immediately before such appointment, any power or function in relation to the Management of the establishment shall cease to exercise or to have the right to exercise such power or function. The Managing Director under the said Article is to hold office during the pleasure of the Central Government and in the discharge of his functions is subject to such orders and directions as the Central Government may from time to time give in writing. In sub-Article (a) of Article 5 of the Order, it is provided that if any such establishment is owned or controlled by a company, then all the powers and functions of the Board of Directors will be exercised by the Managing Director ; the
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same will happen in the case of an estab--lishment owned or controlled by an individual or a firm. Article 6 of the order provides as follows :----- "Unless in any particular case the Managing Director otherwise directs all persons employed in, by or for the purposes of the business of the establishment by whomsoever appointed or engaged, shall continue in their respective employments on the same remuneration and other conditions of service as were applicable to them immediately before the appointment of the Managing Director of that establish--ment." Article 9 of the Order further provided that no suit, prosecution or other legal proceeding shall lie against the Central Government or the Managing Director or any other person for anything in good faith done under this Order or any rule or order made thereunder. 3. Respondent No. I who is Minister of Finance, Government of Pakistan, addressed a meeting of the workers on 6th of January 1972, at 4-30 p.m. Held at Sattar Road, Badami Bagh, near BECO Workshop under the auspices of the BECO People Labour Unit. According to the petitioner, Humayun Iqbal, who was inimical to him presented address of welcome to respondent No. 1. He also made a speech in which, accord--ing to the petitioner he made certain allegations against him and demanded his dismissal. According to the petitioner, respondent No. 1, while replying to the address of welcome, dismissed him from his service. In support of this version he has filed copies of some of the newspapers carrying the proceedings of the meeting. The fact that the said meeting was addressed by respondent No. 1 has not been denied in the written statement. It is also admitted therein that there were number of complaints against the petitioner already received by respondent No. 1, on the basis of which the petitioner had been removed from service before the meeting was held. According to respondent No. 1 it was only the decision with regard to dismissal of the petitioner which was announced in the public meeting. According to him the said decision had been taken by the Managing Director of the concern, already appointed by the Central Government. 4. Respondent No. 2 in his written statement has asserted that certain allegations against the petitioner received by respondent No. 1 had been conveyed by him through proper channel to the petitioner. It is further alleged therein that respondent No. 2 on the basis of the said complaints had conducted `objective' and `unbiased' inquiry and found the petitioner to be guilty whose services were thereafter terminated in accordance with law. It is interesting to note that nothing has been brought on record by the respondents in spite of the Courts' asking to show that some order of termination or dismissal against the petitioner was passed before 6th of January 1972, or any charge-sheet was handed over to him and any formal inquiry on that basis was conducted by respon--dent No. 2, against him. 5. According to the petitioner, after he had been dismissed verbally from his service in the public meeting, he was summoned by respon--dent No. 2 to his office and was directed not to enter the BECO premises in compliance with the order of respondent No. 1. According to him no charge- sheet was supplied nor any order in writing was given to him. However, on 10-1-1972, the petitioner received a registered acknowledgment due notice dated 7th of January 1972, vide Annex. `G', intimating that his services were no longer required by the BECO Management, therefore, he was relieved of his duties with immediate effect. He was further intimated that he would be paid all his dues including one month's pay in lieu of notice. The petitioner has now came up to the High Court and has chal--lenged the validity of the impugned order passed against-him. 6. It has been argued that, the relationship of master and servant exists between the `parties and as such the present petition is not main--tainable. The petitioner has adequate alternative remedy in the form of suit for damages, if he considers that he has been dismissed from service arbitrarily. It has been argued that since the petitioner does not enjoy any statutory protection as granted to the Government employees, there--fore, he cannot seek the redress of his grievance in the form of
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mere declara--petition. No statute or statutory provision giving protection to the petitioner has been infringed. He is an employee of a private concern managed by a nominee of the Government. The mere taking over of Management of the concern has not changed its complexion. Lastly it has been argued on behalf of the respondents that no Court including the Supreme Court and High Court can entertain any petition questioning any provision, any rule or order made or anything done or any action taken or purport--ing to be made, done or taken under Economic Reforms Order of 1972, to be called hereafter as Order. 7. The first question which arises for consideration is as to what is the status of Managing Director, respondent No. 2, in context of the provision as contained in Article 4 of the Order. It has been argued on behalf of the respondents that the Managing Director of the concern does not perform his functions in connection with the affairs of federation, a province or local authority and as such the petition is not maintainable against him. The relevant provision of Article 4 of the Order has already been reproduced above. Clause 3 of Article 4 lays down that the Manag--ing Director shall hold his office during the pleasure of the Central Govern--ment, and shall, in the discharge of his functions be subject to such orders and directions as the Central Government may from time to time give in writing. It means that virtually he is to function under the direction and control of the Central Government. The affairs of the concern have to be managed and controlled by the Managing Director who is appointed by the Central Government. In the present case it is not denied that the Managing Director of the concern appointed under the Order took over A the charge before the alleged order of dismissal was passed against the petitioner. It is true that he has to administer the affairs of the private concern taken over by the Central Government but his status an position has to be examined in context of the control and discipline under which he -has to carry out his duties. His appointment has been made by the Central Government and he has to work in accordance with the! Directions and orders made by the Government. In other words the Central Government through him is entrusted with the proper administration of the concern under the appropriate law. This position existed till 11th of August 1972, when Development of Industries (Federal Control) Ordinance, 1972, was enforced. Before the enforcement of this Ordinance the. Managing Director was working under the direct control of the Central Ministry concerned. There was some advisory body with which the Managing Director was also associated for the purpose of rendering assistance in the running of the federally controlled industries. This body was set up by the Central Government in the month of February 1972. Before that there does not appear to be or at least nothing has been brought on record to show that there was any agency or board in addition to the Managing Director for controlling the affairs of such concerns. He was directly answerable to the Central Government for the perform--ance of his functions at the time when the petitioner was removed from service. His association with the advisory committee did not bring any change in the nature of the control and supervision which obviously vested with the Central Government. 8. Board of Industrial Management was constituted under the Deve--lopment of Industries (Federal Control) Ordinance, 1972, for the purpose of managing the affairs of federally controlled industries efficiently and in accordance with sound business principles. Under section 6(a) of the -- Ordinance the Board is competent to exercise such of the powers of a Managing Director under the Orders, and issue such directions to him as it may consider necessary. The exercise by the Board of the powers of a Managing Director under subsection (1) of section 6 of the Ordinance slap have effect as if it were the exercise of these powers by the Managing Director himself under subsection (2) of the said section of the Ordinance. The Managing Director is to comply with all directions issued to him by the Board under subsection (3) of section 6 of the Ordinance relating to the management of the establishment. Section 7 of the Ordinance, that the Federal Government may by notification in the official Gazette direct that all or any of its powers under the Order shall in such
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circumstances and subject to such conditions if any as may be specified in the notification be exercisable also by the Board. Subsection (2) of section 7 further provides that the Federal Government may from time to time issue such directions to and call for such information or report from the Board as it may deem necessary. 9. All this shows that even under Development of Industries (Federal Control) Ordinance, 1972, the Central Government is directly concerned with the management of the affairs of the industries already taken over by, it. The word 'Federal Control' as used in the Ordinance of 1972, also --shows that the industries covered by the same have been and are under the Control of the Central Government. It may be mentioned here that the Ordinance, 1972, was in addition to the Economic Reforms Order as' provided by section 4 of the Ordinance. The Managing Director prior to the enforcement of the Ordinance has been evidently working in connection with the affairs of the federation and even thereafter though the administration of the federally controlled industries mostly lies with the Board, the Managing Director is performing his functions in connection with the same affairs. After the enforcement of the Economic! Reforms Order, 1972, the subject of the industries, categories of which are given in the Schedule thereof has been with the Central Government and anybody administering the affairs of such industries would be deemed to be performing his functions in connection with the affairs of the federation. In the circumstances it cannot be said that the Managing Director does not perform his functions in connection with the affairs of the federation. 10. It has been argued that since the petitioner was an employee of a private concern, therefore, he has no locus standi to challenge any, order terminating his services under Article 98 of the late 1962 Constitution. It is correct that the petitioner was an employee of BECO Ltd. Before its Management was taken over under the Order of 1972. If the DECO Ltd. Had not been taken over under the said Order then the objection of the respondent may have prevailed. In that case the service rules or service Code framed by the Board of Directors of the private concern would have governed the service of the petitioner and in case of any infringement thereof, the same would not have been actionable under any provision of the Constitution. Here the position is somewhat different. The Board of Directors, the Managing Director or any other authority worth the name of the private concern has already been superseded by the Managing Director and then by the Board of Management in relation to all the affairs of DECO Ltd. This being the position it is to be seen whether the Order of 1972, under which respondent No. 2 has to administer the affairs of the concern gives any protection to the employees of the same in matters of their service or not: It has been provided in Article 6 of the order that unless in any particular case the ' Managing Director otherwise directs, all persons employed in, by or for the purpose of the business of the establishment by whomsoever appointed or engaged, shall continue in their respective employments on the same remuneration and other conditions service as were applicable to them immediately before the appointment the Managing Director of that establishment. It means that unless the Managing Director makes an order for the removal of a particular employee of the concern, he will continue as its employee enjoying all the benefits of service available to him under the previous Management. This protec-- petition with regard to service matter has been granted by the statute itself which controls the affairs of the private concerns taken over under the said statute. In the presence of such statutory provision, it cannot be said that the employees of the concerns taken over under the Order of 1972, do not enjoy any statutory protection against the actions done in violation of the statute. 11. The grievance of the petitioner throughout has been that the respondents have not proceeded in accordance with law namely Order of 1972, under which he enjoys protection with regard to service matters. The main question involved in the present case is as to whether any valid order removing the petitioner from service has been passed by any compe--tent authority or not. Respondent No. 1, in his written statement has stated that he did not make any verbal order in the meeting
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addressed by him, as mentioned above. He merely announced the order of dismissal of the petitioner already made. As mentioned above, nothing has been brought on record to show that any order was made by respondent No. 2 who was competent in this regard, removing the petitioner from service before 6th or 7th of January 1973, or even thereafter. The reports appear-- ing in the various newspapers as alleged in para. 7 of the petition have not been denied indicating that it was respondent No. I who dismissed the petitioner in the public meeting while addressing the same. There is no mention in the written statement of respondent No. 1 as to whether the said reports are correct or not. Respondent No. 2, however, has admitted in his written statement that such reports did appear in the newspapers, ,copies of which have been produced on record as Annexs. 'C' to 'F'. I am not here to enter into any controversy as to whether any such action was taken by respondent No 1, in the public meeting or not. What is to be seen is whether any action removing the petitioner from service was taken in accordance with the provisions of the Order or not, which give protection to the employees of the industrial concerns, taken over under the said Order. 12. Letter dated 7th of January 1972, in original addressed on behalf of the Manager; Badami Bagh Works (BECO Industries Ltd.) to the petitioner has been produced on record as Annex. 'G' intimating him that his services had been dispensed with immediate effect. This letter does not convey any order passed by the Managing Director who was competent to take action in this regard. I have not been able to find out any provision of the Order whereby the Manager or any other Officer except the Manag--ing Director was empowered to take such action against the employees of the concern at the relevant time. In this view of the matter the contention of the learned counsel for the petitioner that the said order has no substance in the eye of the law appears to be correct. The said order is in contra--vention of the statutory provisions of the Order of 1972, having been passed by an incompetent person. The case thus clearly is one in which the petitioner is complaining of non-performance of a public duty, in accordance with law. 13. Further there is nothing on record to show that the petitioner was ever afforded an opportunity of being heard by respondent No. 2 before any action was taken against him. It is true that respondent No. 2 ' has been given power under Article 6 of the order to dispense with the services of any employee but that does not mean that any order in this regard can be passed in contravention of the principle of natural justice. The application of the said principle has not been excluded by express words in the statute of Economic Reforms Order. . Their Lordships of the Supreme Court have held in Abdul Saboor Khan v. Karachi University and another (PLD 1966 SC 536), that the maxim audi alteram parteam ("no one can be condemned unheard") embodies one of the settled principles of law, and such a principle will be read into the relevant law, unless its application is excluded by express words. The Supreme Court as well as the High Court in various cases have repeatedly adverted to this cardinal principle of natural justice that no man should be condemned unheard. Nothing has been brought on record to show that the petitioner was ever given any charge-sheet in respect of certain alleged complaints against him or any explanation was called for from him or he was otherwise heard before he was removed from service. 14. Thus the petitioner has succeeded in establishing that 'the order of his removal from service was made in contravention of the mandatory provision of Article 6 of Economic Reforms Order, 1972 (President's Order I of 1972). 15. The next contention of the learned counsel for the respondents that this Court has no jurisdiction to entertain the petition under Article 8 of the Order reproduced above has no substance, in circum--stances of the case. The petitioner admittedly has not challenged any provision of the Order nor any action taken under the said Order. His, grievance has been that he has not been dealt with in accordance with law, as provided by the Order. Nothing has been brought on record to show that any order was passed by respondent No. 2, the Managing Director against the
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petitioner, in accordance with the provision as contained in Article 6 of the Order. A letter dated 7th of January 1972, conveying the petitioner his removal from service, does not state that the same was, based on any order passed by respondent No. 2. Rather the said letter appears to have been written by some person' for the Manager of BECO Industries Ltd. Who is certainly riot competent to make such order under the law. Moreover any order or action in respect of which immunity may be claimed under any special enactment must be an order or action made in accordance with the relevant provisions of the said enactment. If any order or decision made by an authority having exclusive jurisdiction in the matter suffers from excess of jurisdiction or refusal to exercise jurisdiction then the same is not immune from scrutiny under Article 98 of the late 1962 Constitution. Reliance in this respect can be placed upon Now Haji Khair Muhammad Khan v. State (PLD 1966 SC 804), Mst. Hajiani and 2 others v. West Pakistan Land Commission and 4 others (PLD 1966 SC 114), Jaman Das and 5 others v. The Chief Land Commissioner, West Pakistan (PLD 1966 SC 229) and Ahmadi Begum v. Muhammad Mushtaq A.I Khan (PLD 1970 Lah. 341). 16. The next question which needs consideration is whether the petitioner is entitled to challenge the order of his removal from service under Article 98 of the Constitution when he is not enjoying any constitutional guarantees with regard to service matters . As provided by Article 177 of the Constitution to civil servants. The petitioner admittedly cannot claim to be a civil servant as he was an employee of a private industrial concern, later on taken over under the Economic Reforms Order. His claim is that since he enjoys protection under Article 6 of the Order in his service matters, therefore, any violation of the said mandatory provi--sion can be challenged by him in the present proceedings. If the said protection granted by the statute had not been available to him then his case would have been governed by the principle of master and servant. It is true that the law on the subject in Pakistan has followed in all essential respects the practice of the English Courts. The superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations. It was held by the Supreme Court in Lahore Central Co- operative Bank Ltd. v. Saif Ullah Shah (PLD 1959 SC (Pak.) 210), that it was doubtful whether a Commercial Manager of a Co-operative Bank could claim the application to himself of the Civil Service Rules when the said Rules were made applicable to the employees by a resolution of the Managing Committee. It was further observed that the resolution of 3rd of February 1945, which made the Civil Service Rules applicable was not passed in the form of Rule and as such it was doubtful whether it could be thought that thereby compliance was made with By-Law No. 23(19) of the Co-operative Societies Act, 1912. Their Lordships of the Supreme Court in that case accepted the appeal filed by the Bank on the ground that the respondent was not holding any statutory office and secondly the service was not governed by any statutory Rule and as such he was not enjoying any statutory protection ~against his illegal removal from service. 17. In the present case, as discussed above, Article 6 of the Order lays down that the previous employees of the industrial concerns would continue in service unless removed by the Managing Director in accord--ance with law. The statute itself as such has granted protection to the petitioner being the employee of the concern at the time when the order was enforced. As mentioned above, his case is that he has not been removed from service by the Managing Director and the order if any in this regard has been passed by an incompetent person which is in contraven--petition of the statutory provision. 18. The Supreme Court while accepting the appeal in Sheikh Maqbool Elahi and others v Khan Abdul Rehman Khan and others (PLD 1960 SC 266), held that although no statutory duty was involved there it was undeniable that a duly qualified Director had a legal right to sit on the Board of Directors and that this was a right which was of the greatest importance to the public interest, in the field of the operation of public joint stock companies under Company Law. It was further held that the shareholders, had a legal right vested in them to elect persons to be members of the
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Board of Directors which shall conduct the affairs of the Company. The Supreme Court by this decision upheld the admission of a duly qualified Director to the Board of Directors of the West Pakistan Steel Corporation Ltd., a public company formed under the Companies Act, although no statutory duty was involved there. In another case namely The…
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